COMMON GROUND / Bush, Congress in agreement on military strikes / Unusual display of unity on retaliation

Edward Epstein, Chronicle Washington Bureau

Published
4:00 am PDT, Friday, September 14, 2001

2001-09-14 04:00:00 PDT Washington -- With talk of war swirling through the capital, the often-prickly debate over the roles of the president and Congress in taking military action overseas has been replaced by a show of unity.

President Bush and Congress are negotiating wording on a resolution that would authorize military action against the terrorists responsible for Tuesday's carnage at New York's World Trade Center and the Pentagon. A vote could come soon.

The White House proposed Congress give the president authority to "use all necessary and appropriate force" against those involved in the attack as well as "to deter any future acts of terrorism or aggression against the United States," according to a draft of the resolution obtained by The Chronicle. The draft coincided with the sentiments of top Defense Department officials who said they envision a long campaign against the terrorists.

Faced with widespread public sentiment to strike back, not one member of a Congress that usually is jealous about protecting its constitutional prerogatives has publicly questioned the idea of authorizing the president to take military action.

Still, some members of Congress have put out their own ideas for a legal framework for striking back. A group of conservative Republican members yesterday proposed a formal declaration of war on international terrorism and those who aid it. Others in Congress favor a less dramatic move, a resolution authorizing the president to use force to root out the terrorists responsible for Tuesday's attacks.

The Constitution set the stage for the traditional disputes on the issue by dividing authority over the military between the legislative and executive branches.

Congress has the sole right to declare war, but the president is commander- in-chief of the armed forces. The result has been that since 1789 presidents have sent American forces into action abroad almost 300 times. But in only five of those conflicts has Congress declared war, the last time in 1941-42, when war was declared in World War II.

In the wake of the undeclared Vietnam War, Congress passed the War Powers Act in 1973 over President Richard Nixon's veto. It was designed to curb the president's ability to involve U.S. forces in overseas action. No president since then has fully accepted the law, and the federal courts have punted on making a final ruling.

And while action on a joint executive-legislative resolution may be imminent, some academic experts advise caution, questioning how war could be declared against a nonspecific enemy and saying that Congress should be wary of turning over its war-making powers.

"I find it a little shocking and risky" that Congress and the president are talking about authorizing sweeping military action so soon after Tuesday's attacks, said Roberta Ann Johnson, a professor of American politics at the University of San Francisco.

"This is a moment when we should be patient, focused and wise," Johnson added.

Another governmental scholar said that Congress' 1964 experience in quickly and overwhelmingly passing the Gulf of Tonkin Resolution authorizing President Lyndon B. Johnson to fight the Vietnam War should serve as a cautionary tale.

"They gave the president an open-ended resolution to prosecute the war. The result was a dead-end war and 50,000 or so lives lost, ending in disaster," said professor Donald Robinson of Smith College in Massachusetts.

On the other hand, Robinson praised the 1991 debate and passage of a more narrowly focused resolution authorizing Bush's father, the 41st president, to take military action to remove Iraqi forces from Kuwait. The resolution required Bush to comply with most reporting requirements of the War Powers Act and came after five months of discussion in which Congress demanded the elder Bush recognize their war-making powers.

The big difference in this instance, scholars said, is that for the first time since Pearl Harbor, American territory was attacked.

Robinson said the country's Founding Fathers clearly felt the president had the authority to repel a sudden foreign attack without getting congressional approval. "This occasion comes close to the matter of repelling a sudden attack in invoking presidential power," he said.

Former Rep. Tom Campbell, now a Stanford University law professor, agreed, and said he'd like to see Congress proceed under a constitutional provision that gives it power "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.

"It can't be clearer in the constitution. And that's exactly what Congress should do," said Campbell.